Opinion
KA 00-00446
May 3, 2002.
Appeal from a judgment of Oneida County Court (Dwyer, J.), entered November 19, 1998, convicting defendant after a jury trial of, inter alia, sodomy in the first degree (two counts).
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (ESTHER COHEN LEE OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL A. ARCURI, DISTRICT ATTORNEY, UTICA (CARL J. BOYKIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, HURLBUTT, BURNS, AND LAWTON, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of two counts each of sodomy in the first degree (Penal Law former § 130.50 [3]) and endangering the welfare of a child (§ 260.10 [1]), and three counts of sexual abuse in the first degree (former § 130.65 [3]). Defendant was sentenced to concurrent and consecutive terms of incarceration, resulting in an aggregate indeterminate term of incarceration of 15 to 30 years. County Court did not abuse its discretion in allowing two children, ages eight and nine years, respectively, to give sworn testimony. The court conducted an appropriate preliminary examination of those witnesses ( see People v. Morales, 80 N.Y.2d 450, 452-453), and each child demonstrated that she understood the nature of an oath ( see People v. Donk, 259 A.D.2d 1018, 1019, lv denied 93 N.Y.2d 924).
The court did not abuse its discretion in allowing a videotape to be played for the jury. The videotape was relevant to establish the elements of the charge of endangering the welfare of a child, and was not shown solely to inflame the jury ( see People v. Garraway, 187 A.D.2d 761, 762, lv denied 81 N.Y.2d 886). The court properly directed that the sentences imposed on the sexual abuse counts run consecutively to those imposed on the sodomy counts. The evidence presented by the People establishes that defendant engaged in separate sexual acts constituting distinct offenses ( see People v. Curtis, 195 A.D.2d 968, 969, lv denied 82 N.Y.2d 752). The sentence is neither unduly harsh nor severe.